Our Children's Earth Foundation and Ecological Rights Foundation (collectively OCE) appealed a decision of the district court granting judgment for the defendant, the United States Environmental Protection Agency (EPA). The United States District Court for the Northern District of California had held that decisions by EPA to revise effluent guidelines pursuant to the Clean Water Act (CWA)[1] and incorporate technology-based criteria in the agency's periodic review of those guidelines are within the agency's discretion. The Ninth Circuit affirmed, holding the district court properly dismissed Plaintiffs' claims regarding the manner and timing of review of the guidelines, the scheduling of plan publication, and identification of new polluting sources, and the district court did not abuse its discretion in refusing to transfer the claims to the appellate court.

OCE filed a citizen suit under section 505(a)(2) of the CWA alleging EPA had failed to comply with its statutorily mandated duties to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, OCE alleged that EPA abandoned technology-based review in favor of hazard-based review, failed to publish timely plans for future reviews, and neglected to identify new polluting sources. Section 505(a)(2) allows a citizen suit to be brought "where there is alleged a failure of the Administrator to perform any act or duty . . . which is not discretionary with the Administrator."[2] The other jurisdictional provision of the CWA, section 509(b)(1), permits challenges to the exercise of the Administrator's discretion in promulgating standards and issuing determinations; claims brought pursuant to this second provision must be filed directly in the circuit court of appeals.[3] The district court granted judgment in favor of EPA, holding that the challenged acts or omissions were discretionary and thus were improperly before the court under the section 505(a)(2) citizen suit provision. On appeal, the threshold question was whether OCE's claims relate to a mandatory obligation (for which a section 505(a)(2) suit is appropriate) or discretionary agency action (for which a section 509(b)(1) suit is appropriate).

The court began by noting the policy goals behind the CWA and the long-standing commitment to use the best available technology to determine effluent guidelines.[4] The CWA imposes nondiscretionary duties on EPA to review those guidelines and, where appropriate, to revise them according to statutory criteria. The requirement to use a technology-based approach to promulgate and revise regulations runs throughout the text of section 304(b)[5] and section 301(d).[6] Importantly, use of the word "shall" in connection with a stated obligation in statutory text usually connotes a mandatory command.[7] Discretion is indicated where no provision specifies one course of action over another.[8] The plain language of both provisions, which rely heavily on the use of the word "shall" throughout, reflects a mandate to use a technology-based approach as a nondiscretionary matter in the promulgation of regulations. Moreover, the statutory language unambiguously indicates that revision decisions, although discretionary as conveyed by the "if appropriate" language, are constrained by the statutory mandate as to what such regulations "shall" accomplish. However, the regulatory scheme falls short of unequivocally mandating a readily ascertainable duty to utilize a technology-based approach in reviewing effluent guidelines.[9] The Ninth Circuit thus held that EPA's